Uttarakhand High Court
Sushil Kumar vs State Of Uttrakhand on 8 September, 2022
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 254 of 2010
Sushil Kumar ..........Revisionist
Vs.
State of Uttrakhand ........ Respondent
Present : Mr. Kundan Singh Negi, Amicus Curiae.
Mr. Subhash Tyagi Bhardwaj, Deputy Advocate General for the
State.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
The challenge in this revision is made to the
following judgment and orders:-
(i) judgment and order dated
10.08.2010, passed in Criminal Case
No. 1394 of 2010, State vs. Sushil
Kumar, ("the case"), passed by the
Court of 2nd Additional Civil Judge
(Junior Division) /Judicial
Magistrate, Roorkee, District
Haridwar. By it, the revisionist has
been acquitted of the charge under
Sections 467, 468 & 471 of IPC. But,
he has been convicted under Section
419 & 420 of IPC. The revisionist has
been sentenced to three years
rigorous imprisonment with a fine of
Rs. 1,000/- under Section 419 IPC,
with the stipulation that, in default
of payment of fine, he shall undergo
simple imprisonment for a further
period of one month. The revisionist
has further been sentenced three
years rigorous imprisonment with a
fine of Rs. 1,000/- under Section
420 IPC, with the stipulation that, in
default of payment of fine, he shall
undergo simple imprisonment for a
further period of one month.
(ii) Judgment and order dated
08.12.2010, passed in Criminal
Appeal No. 89 of 2010, Sushil
Kumar Vs. State, by the court of 6th
Additional Sessions Judge,
Haridwar. By it, the appeal has been
dismissed and conviction and
sentence, as recorded in the case,
has been upheld.
2. Facts which emerged from the record are as
follows:-
(i) On 08.03.2010, an Account No.
091301502526 ("the account") was opened in
the name of Deepak Kumar in the I.C.I.C.I.
Bank, Branch Roorkee ("the Bank"). At the time
of opening of the account, the Voter I.D. and
Driving Licence were presented.
(ii) On 04.04.2010, a cheque of Rs. 14,56,000/-
of the Punjab National Bank was deposited in
the account. It was forged. The account holder
was traced, but, he could not be contacted by
the bank officials, therefore, the account was
marked debit freezed. Subsequently on
12.04.2010, again a cheque amounting to Rs.
18,50,000/- of Bank of Baroda, was presented
for clearing in the account of said Deepak
Kumar. The bank officials tried to contact the
account holder, but, they could not trace him.
It so happened that on 15.04.2010. The said
Deepak Kumar, according to the FIR, visited
the bank for withdrawal of the money. He was
questioned by the bank officers, and, at the
same time, police was informed. He was
arrested. Prior to it, on 12.04.2010 itself, the
FIR was lodged by PW1 Prabhpreet Singh
Sehgal, the Branch Manager of the Bank.
3. It is the case of the prosecution that when the
revisionist apprehended, an identity card of Sushil Kumar
was recovered from his possession. After investigation
charge-sheet under Sections 419, 420, 467, 468 & 471 of
IPC was submitted against the revisionist. On
29.06.2010, charge under Sections 419, 420, 467, 468 &
471 IPC was framed.
4. In order to prove its case, prosecution
examined seven witnesses, namely, PW1 Prabhpreet
Singh, PW2 Tarun Gauhari, PW3 Varun Kalra, PW4
Gaurav Pundir, PW5 Subhodh Kumar Sharma, PW6
Constable Police, Gambhir Singh and PW7 Govind
Kumar, S.I., the Investigating Officer.
5. The revisionist was examined under Section
313 of the Code of Criminal Procedure, 1973 ("the Code").
According to him, he has falsely been prosecuted.
6. After hearing the parties by the impugned
judgment and order passed in the case, the revisionist
has been convicted and sentenced, as stated hereinabove.
Aggrieved by it, the revisionist unsuccessfully filed the
appeal. Hence, the revision.
7. Learned Amicus Curiae would submit that
there is no evidence against the revisionist. There is no
document allegedly written by the revisionist. There is no
Forensic Science Report. Merely, on the basis of recovery
of some identity card from his pocket, he has been
convicted. Therefore, the conviction and sentence is
without any evidence and interference is required in this
revision.
8. On the other hand, learned State Counsel
would submit that the prosecution witnesses has stated
about the prosecution case. He would impress upon the
evidence of PW4 Gaurav Pundir, to argue that, it is this
witness, who had opened the account of Deepak Kumar.
He knew Deepak Kumar and the person who was arrested
on 15.04.2010, as has been stated by all other witnesses.
Therefore, it is argued that the prosecution has able to
prove its case.
9. The Court posed a question to the learned
State Counsel to indicate one piece of legally admissible
evidence, which connects the revisionist with the charge
framed against him. He would submit that PW4 Gaurav
Pundir has stated that he had opened the account of
Deepak Kumar. The Court further wanted to know from
the learned State Counsel as to how the person Deepak
Kumar, whose account was allegedly opened by PW4
Gaurav Pundir is connected with the present revisionist.
Learned State Counsel would submit that on 15.04.2010,
the revisionist was arrested in the bank and at that
moment, the Identity Card of Sushil Kumar, s/o Surendra
Kumar, r/o Salahkhedi, Police Station Babri, District
Muzaffarnagar was recovered. Therefore, it connects the
revisionist with Deepak Kumar.
10. PW5 Subhod Kumar Sharma was working in
the bank, Branch Jhandewala, Delhi. According to him,
on 04.04.2010, a cheque amounting to Rs. 14,56,000/-,
in the name of Deepak Kumar, was presented for clearing.
The cheque when process was found to be forged. This
witness has also stated that again a Bank of Baroda
cheque of Rs. 18,50,000/- was also deposited for clearing
in the account of Deepak Kumar. It was also forged.
Branch Roorkee was informed. This witness has proved
certain documents Ex. 1 to 3, which he had given to the
police officer. According to him, the cheque in-questions
are Ex. 2 & 3.
11. PW1 Prabhpreet Singh is the person who
lodged the FIR. According to him, the account of Deepak
Kumar was opened on 18.03.2010 in the Bank. Two
cheques amounting to Rs. 14,56,000/- from Punjab
National Bank and Rs. 18,50,000/- from Bank of Baroda
were presented for clearing. The cheques were forged.
Thereafter, this witness lodged an FIR. He has also proved
the account opening form and identity documents Ex. A1
to Ex. A4.
12. PW2 Tarun Gauhari and PW3 Varun Kalara
have also stated about the account opened by the Deepak
Kumar. According to them, on 15.04.2010 at about 10:30
in the morning, when Deepak Kumar visited the bank, for
payment, police was informed and he was arrested. From
his pocket, an identity card of Sushil Kumar s/o
Surendra Kumar, r/o House No. 152 Salahkhedi, Police
Station Babri, District Muzaffarnagar was recovered.
13. PW4 Gaurav Pundir has stated that he had
opened the account of Deepak Kumar and at that time,
Voter I.D. and Driving Licence were produced by the
account holder. He has also stated about the cheques
which were submitted for clearance in the account.
14. PW6 Constable, Gambhir Singh has proved
police documents.
15. PW7 S.I., Govind Kumar is the Investigating
Officer. He has proved the documents prepared during
the investigation.
16. Merely, an identity card is recovered from
somebody's pocket, can it be concluded that the identity
card belongs to the person who holds it? There is no
evidence to connect that the identity card, which was
found from the pocket of the revisionist belongs to him.
Though, the revisionist has not disputed his identity.
17. But how could it be connected that the
revisionist is the person named Deepak Kumar, who
opened his account on 08.03.2010, in the ICICI Bank,
Branch Roorkee? How can it be said on 08.04.2010, a
cheque was presented for clearing in the account of
Deepak Kumar by the revisionist? How can it be said that
subsequently, another cheque of Rs. 18,50,000/- from
the Bank of Baroda was presented for clearing in the
account of Deepak Kumar by the revisionist? In fact, the
witnesses have stated that they did not send the disputed
cheques to the concerned banks for their opinion.
18. Learned State Counsel has referred to the
statement of PW7 Govind Kumar, Investigating Officer to
argue that, in fact, one of the Punjab National Bank
cheque was in the name of some other person and it has
a different amount. But, what is the basis of the
statement of PW7 Govind Kumar? Did he question any
officials from Punjab National Bank? In whose name the
cheques were issued? When was it presented? Who
manipulated it? He stated that there is no evidence to
suggest that it is the revisionist who presented the
cheques for clearance.
19. Interestingly, PW4 Gaurav Pundir has not
identified the revisionist either. He has not stated that it
is the revisionist, who had opened the account. Learned
State Counsel could not indicate the part of the statement
of PW4 Gaurav Pundir, in which he had identified the
revisionist. In fact, it appears that PW4 Gaurav Pundir
has not identified the person, who introduced himself as
Deepak Kumar and opened his account. How could
revisionist, in such circumstances be connected Deepak
Kumar, who allegedly opened the account in the Branch
Roorkee of the bank? No opinion of handwriting expert
has been obtained on the account of Deepak Kumar.
20. If Deepak Kumar, who opened the account, in
the Branch Roorkee of the bank, had filed his Voter I.D.
and Driving Licence at the time of opening of the account,
were they sent for verification? The answer is in negative.
Can today we say that Deepak Kumar, who opened the
account, is not in existence. There is no evidence which
can conclusively affirm that there is no person named
Deepak Kumar, who had opened his account in the
Branch Roorkee of the bank. There is no evidence of
impersonation. The revisionist has been convicted and
sentenced under Section 419 & 420 of IPC. It deals with
cheating. Section 419 of IPC provides punishment for
cheating by personation. Whom did the revisionist cheat?
Whom did the revisionist impersonated? There is
absolutely no evidence.
21. This Court is conscious of the fact this is a
revision. Appreciation of evidence is not generally done in
such matter. But, if finding is perverse i.e. if it is against
weight of evidence, the Court is required to appreciate the
evidence. Similarly, if irrelevant material is considered or
material evidence is ignored, in such circumstances also,
the Court is within its jurisdiction to make interference in
revisions.
22. As discussed hereinabove, instant is the case
in which there is, in fact, no evidence against the
revisionist to prove charge under Sections 419 & 420 of
IPC. He is not connected in any manner with the person
Deepak Kumar who had opened his account on
08.03.2010 in the Branch Roorkee of the bank. Therefore,
this Court is of the view that the conviction and sentence,
as recorded in the case, and as confirmed in the appeal is
against law. There is no evidence, which may prove
charge under Sections 419 & 420 IPC. Therefore, the
revision deserves to be allowed.
23. Accordingly, revision is allowed. Impugned
judgment and orders dated 10.08.2010 & 08.12.2010 are
set-aside. Revisionist is acquitted of the charge under
Sections 419 & 420 of IPC.
24. The revisionist is on bail. His bail bonds are
cancelled and sureties are discharged of their liability.
The revisionist shall furnish personal bonds and two
sureties, each of the like amount to the satisfaction of
court concerned, under Section 437-A of the Code within
six weeks from today.
25. Let the lower court record be sent back to the
court concerned.
(Ravindra Maithani, J.)
08.09.2022
AK
